Opinion
B230992
10-31-2011
In re JESSE S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. JESSE S., Defendant and Appellant.
Bruce G. Finebaum, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. FJ 47423)
APPEAL from a judgment of the Superior Court of Los Angeles County, Cynthia Loo, Judge. Affirmed.
Bruce G. Finebaum, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.
Jesse S. appeals from the juvenile court's finding true the allegation in a petition brought under Welfare and Institutions Code section 602 that he committed one felony count of making criminal threats. Appellant contends there is no substantial evidence in the record to support the true finding. We affirm.
FACTS
On March 31, 2010, about 1:15 p.m., Alicia Trujillo, a teacher at Harding Community Day School, was about to return to her classroom after a lunch break. Appellant and his brother, Salvador L., were among her students. The brothers had been tardy several times, and the vice principal decided to call the police to report them for truancy. Salvador was issued a truancy ticket after being called to the principal's office. Afterwards, a counselor called Trujillo and reported that Salvador would not enter the classroom for a counseling class. Trujillo returned to her classroom and found Salvador sitting on a railing outside the classroom. He refused to enter the room with the counselor present. He was very angry and blamed Trujillo for the ticket, telling her "you fucked up" and it was "your fault I got this ticket." Trujillo went to the vice principal to report the incident, and the vice principal told her Salvador was just angry and she should return to her classroom.
When Trujillo got back to her classroom, Salvador had gone inside and appellant was seated in the classroom along with about 20 students. Salvador called her a "fucking bitch" and both Salvador and appellant yelled that "[w]e are going to get you." Salvador then left the classroom without permission. After Salvador left, appellant again yelled at Trujillo, saying, "We are going to fuck you up[,] bitch." Appellant was seated sideways at his desk only four feet away. He then left the classroom despite Trujillo's directing him not to leave.
Just before appellant's adjudication, Salvador admitted the same offense of which appellant was accused.
Trujillo was "devastat[ed]" by the incident. She believed a threat was made to her physical well-being. She was concerned and afraid because Salvador had previously told her he had sustained a head injury because of his involvement in a gang. She believed from his comment and statements she overheard him making to other students that Salvador was affiliated with a criminal street gang. Trujillo assumed his brother, appellant, was also in the gang as appellant was very close to his brother. Appellant and his brother never returned to the school after leaving the classroom.
PROCEDURAL HISTORY
The Los Angeles County District Attorney brought a Welfare and Institutions Code section 602 petition alleging appellant made criminal threats against Trujillo in violation of Penal Code section 422 (section 422). Appellant denied the allegation. After hearing testimony, the juvenile court found the allegation to be true, sustained the petition, declared the offense a felony and placed appellant home on probation. Appellant timely appealed.
STANDARD OF REVIEW
The standard of review for a claim of insufficiency of evidence is whether, after viewing the entire record in the light most favorable to the prosecution, there is substantial evidence, i.e., evidence that is reasonable, credible and of solid value, such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Johnson (1980) 26 Cal.3d 557, 578.) The standard of review in juvenile proceedings involving criminal acts is the same standard used in adult criminal trials. (In re Jose R. (1982) 137 Cal.App.3d 269, 275.) "We must presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence," and we "must make all reasonable inferences that support the finding of the juvenile court." (Ibid.)
DISCUSSION
To sustain a finding that appellant made a criminal threat in violation of section 422, the prosecution was required to show: (1) appellant willfully threatened to commit a crime that would result in death or great bodily injury to another person; (2) he made the threat with the specific intent that it be taken as a threat, even if there was no intent of actually carrying it out; (3) the threat was, on its face and under the circumstances in which it was made, so unequivocal, unconditional, immediate and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution of the threat; (4) the threat actually caused the person threatened to be in sustained fear for his or her own or immediate family's safety; and (5) the threatened person's fear was reasonable under the circumstances. (People v. Toledo (2001) 26 Cal.4th 221, 228.) In enacting section 422, the Legislature declared that every person has the right to be protected from fear and intimidation. (People v. Martinez (1997) 53 Cal.App.4th 1212, 1221 (Martinez).)
Section 422 provides, in pertinent part, that "[a]ny person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety," is guilty of a crime.
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Appellant asserts his statements to Trujillo fall within the category of a "mere angry utterance," analogous to the situation in In re Ricky T. (2001) 87 Cal.App.4th 1132 (Ricky T.). In Ricky T., the minor left his high school classroom to use the restroom and found the classroom door locked on his return. The student banged on the door to be let in and was accidentally struck when the teacher opened the door. The minor became angry, cursed the teacher, and said, "'I'm going to get you.'" (Id. at p. 1135.) The teacher felt threatened and sent the student to the school office. (Ibid.) The following day, the police interviewed the minor, who admitted feeling disrespected, getting angry and "'getting in [the teacher's] face.'" The minor denied any intent to sound threatening and apologized for his inappropriate behavior. (Ibid.)
In the present case, appellant asserts that, even assuming appellant made a threatening statement with the specific intent that it be taken as a threat, the threat lacked credibility under the circumstances. Specifically, appellant states that, as in Ricky T., the threat was not so unequivocal, unconditional, immediate and specific as to convey to Trujillo a gravity of purpose and an immediate prospect the threat would be carried out. Appellant argues there was no testimony or evidence appellant had ever been violent or was a discipline problem, nor was there evidence he engaged in arguments, hostility, displays of physical violence or general aggression toward Trujillo either before or after this incident. Appellant claims there was no proof appellant was, in fact, a gang member and no testimony Trujillo was previously fearful of appellant for that or any other reason. Appellant further asserts the fact that he made the statement in the classroom, with other students and the school counselor present belies a finding appellant had an immediate opportunity to carry out his threats. Additionally, appellant states that Trujillo's fear was neither sustained nor reasonable under the circumstances. Appellant characterizes the incident as mere "acting out" in class.
A. Threat of Great Bodily Injury or Death
The record supports a finding that appellant voiced a threat against Trujillo that could have resulted in great bodily injury or death. Section 422 specifies that such a communication must be sufficient "'on its face and under the circumstances in which it is made'" to constitute a criminal threat. (In re Ryan D. (2002) 100 Cal.App.4th 854, 859 (Ryan D.).) The meaning of a threat by a defendant is "gleaned from the words and all of the surrounding circumstances." (Martinez, supra, 53 Cal.App.4th at p. 1218.) Thus, "'[e]ven an ambiguous statement may be a basis for a violation of section 422.'" (Ryan D., supra, at p. 860.)
In People v. Butler (2000) 85 Cal.App.4th 745 (Butler), the victim complained to defendant's mother about the vandalism at the apartment complex where they resided. The defendant overheard the victim complaining and told her it was "none of her 'fucking business.'" (Id. at p. 749.) When the victim told the defendant to "wait until her husband got home," the defendant stated he was going to beat her husband with a baseball bat. (Ibid.) Later that evening, the defendant, accompanied by four or five friends, confronted the victim outside her apartment. He called her "'a fucking bitch,'" and he told her she needed to mind her own business or she "was going to get hurt." Appellant told the victim his gang, "El Norte," "owned" the apartments. (Ibid.)
The appellate court concluded the defendant's statements constituted a sufficient threat of great bodily injury or death. (Butler, supra, 85 Cal.App.4th at pp. 754-755.) Quoting People v. Mendoza (1997) 59 Cal.App.4th 1333, 1342 (Mendoza), the court indicated that "'although appellant's words were ambiguous, did not mention a particular criminal act or give other particulars, a rational [trier of fact] could have found -- based on all the surrounding circumstances -- appellant's words were sufficiently unequivocal, unconditional, immediate and specific to convey to [the victim] a gravity of purpose and immediate prospect of death or serious bodily injury.'" (Butler, supra, at p. 754.) In Mendoza, the defendant told the victim: "you fucked up my brother's testimony. I'm going to talk to some guys from Happy Town." (Mendoza, supra, at p. 1340.) The court determined those words, in light of the surrounding circumstances, were sufficient for a violation of section 422. (Mendoza, at p. 1342.) The defendant in Mendoza and the victim had known each other for several years through their mutual membership in the Happy Town street gang, the victim had testified only two days earlier against the defendant's brother at a preliminary hearing, she knew the defendant's brother was also a Happy Town member and she also knew that gang members were capable of violence and would not hesitate to retaliate against her for hurting a fellow gang member and to prevent her from giving further testimony at his trial. (Id. at p. 1341.)
Similarly, in Martinez, supra, 53 Cal.App.4th 1212, the court found the defendant's words combined with other circumstances could reasonably be interpreted as a criminal threat. (Id. at p. 1218.) In that case, the defendant went to visit his girlfriend at work. Her supervisor told him to leave the premises. When defendant did not leave, the supervisor walked toward the defendant. The defendant got into the supervisor's face and started yelling and cursing at him; defendant told the supervisor, "'I'm going to get you,'" and then left. (Id. at p. 1215.) The court rejected appellant's claim that he was just "'mouthing off'" (id. at p. 1218), taking note that defendant was extremely angry, was cursing at the supervisor and was in very close proximity to the supervisor when making the threats. (Id. at p. 1221.) Such situations, the court observed, "can be very intimidating and can carry an aura of serious danger." (Ibid.)
Here, appellant willfully made a threat to commit a crime that could result in great bodily injury or death. He repeatedly told Trujillo she had "fucked up" and she was a "fucking bitch." Like the defendant in Mendoza, appellant believed Trujillo had wronged his brother and threatened retribution. Like the defendant in Martinez, appellant, along with his gang-affiliated brother, told Trujillo they were going to "get" her and that they were "going to fuck [her] up." As in both cases, the circumstances indicated appellant was in a position to carry out the threat. Appellant was only four feet away from Trujillo when he cursed, yelled and threatened to come after her. Although he was seated at his desk, he was sitting sideways, in a position to lunge when he made these statements. Appellant's defiance in leaving class without permission after making his threats indicated continued anger and hostility toward Trujillo. The juvenile court could reasonably infer from appellant's statements and the surrounding circumstances that appellant willfully threatened harm to Trujillo.
B. Specific Intent
The circumstances presented sufficient evidence to conclude also that appellant intended his statements to be taken as a threat. In People v. Wilson (2010) 186 Cal.App.4th 789, the defendant, a prisoner, told a correctional officer he could find anyone and "blast" them, that he had killed officers, he had done it before and would do it again, and he would find the officer and "blast" him when he was released on parole in 10 months. (Id. at p. 814.) The court reasoned that the defendant intended to threaten the victim because his threats were made repeatedly and he further stated he would find the officer to "blast" him. (Ibid.; see also People v. Melhado (1998) 60 Cal.App.4th 1529, 1536 [threatening to blow someone up with a grenade is intended to be a threat]; In re David L. (1991) 234 Cal.App.3d 1655, 1659 [climate of hostility and the manner in which threat was made supported inference defendant intended victim to feel threatened].)
In the present case, appellant repeatedly told Trujillo he was going to "fuck [her] up." He directed this threat solely toward her, in a climate of hostility and defiance. Even as he left the classroom, he repeated the same threat. The circumstances were such that it could readily be inferred he intended she feel threatened.
C. Gravity of Purpose
The circumstances in which appellant made his threats also indicated the threat was immediate and specific enough to convey the gravity of the situation. For purposes of a criminal threat, a communication need not be absolutely unequivocal, unconditional, immediate and specific; the inclusion of the qualifier "so" in the statute establishes that the test is whether, in view of the surrounding circumstances, the communication was sufficiently unequivocal, unconditional, immediate and specific as to convey to the victim a gravity of purpose and immediate prospect of execution. (People v. Bolin (1998) 18 Cal.4th 297, 340; see Ryan D., supra, 100 Cal.App.4th at p. 861.) A reviewing court must decide whether the totality of circumstances is minimally sufficient to meet the statutory standard. (Ryan D., at p. 862.)
Here, the juvenile court, based on all the surrounding circumstances, found sufficient evidence to show the threat was sufficiently unequivocal, unconditional, immediate and specific enough to convey a gravity of purpose. Like the victim in Mendoza, Trujillo had reason to believe appellant's threat to "get" her and "fuck [her] up" was more than mere acting out. (Mendoza, supra, 59 Cal.App.4th at pp. 1340-1341.) Appellant's threats were made in conjunction with his brother's threats. As their teacher, Trujillo was familiar with both appellant and his brother. Trujillo had reason to believe appellant's brother was in a gang and had been exposed to physical violence through his gang membership. It was reasonable for her to assume that appellant was in the gang as well because of their close relationship. Moreover, unlike the defendant in Ricky T., who made only a fleeting statement in the heat of the moment (Ricky T., supra, 87 Cal.App.4th at p. 1138), appellant made repeated threats during the incident. His threats never wavered, and he continued to threaten Trujillo even after his brother had left the classroom, saying, "[w]e are going to fuck you up[,] bitch." Also unlike Ricky T., where the situation was immediately defused when the minor complied with his teacher's order to report to the school office (id. at p. 1135), the threat of retaliation was unresolved by appellant's further defiance in leaving the classroom in solidarity with his brother despite Trujillo's order to remain. That others were present when the threats were made did not lessen the gravity of the situation. There was no showing that the counselor or other students acted or were in a position to act to preclude appellant from carrying out his threats.
D. Sustained and Reasonable Fear
Appellant contends the evidence failed to show Trujillo was in a sustained and reasonable fear for her safety.
Fear is "sustained" for purposes of section 422 when it is for a period of time beyond what is "momentary, fleeting, or transitory." (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) Even 15 minutes of fear can satisfy the "sustained fear" element of the statute. (Ibid.; Butler, supra, 85 Cal.App.4th at p. 755, fn. 3.) The test is not the duration of time but the extent of the reflection. (Allen, supra, at p. 1156, fn. 6.) Whether fear is reasonable is determined by all the circumstances.
Here, the juvenile court impliedly found that Trujillo's fear was sustained and reasonable under the circumstances. Appellant repeatedly cursed at Trujillo and told her he would "get" her and "fuck [her] up." This sustained diatribe was more than a mere transitory or fleeting comment. Trujillo testified she was "devastat[ed]" by appellant's threats; she was shocked and felt physically threatened, thinking it might actually happen. Appellant was about an arm's reach away sitting at his desk sideways, as if he were going to get up. The evidence justified a finding that Trujillo was in sustained fear and that her fear was reasonable under the circumstances.
DISPOSITION
The judgment is affirmed.
FLIER, J. WE CONCUR:
RUBIN, Acting P. J.
GRIMES, J.